Yucca in the Crosshairs

When I teach administrative law, we start the semester with one of the primary lessons of the course:  "Everything in administrative law is political."  The same, often, can be said about energy law.  Our policy, our decisions, the directions we head on the nation's energy landscape are driven as much by politics -- interest groups, ideology, inertia -- as they are by reason, calculus, and a careful assessment of costs.

This is perhaps nowhere more true than with nuclear energy.  The political storm that surrounds that resource is on full display again this week.  As I posted previously, the House Energy and Commerce Committee has begun investigating the Obama administration's decision to (depending on your perspective) mothball or permanently shutter the Yucca Mountain project, which was originally slated to serve as a long-term storage facility for spent nuclear fuel.

Yesterday, the Committee held hearings on the matter and sparks flew.  The heart of the hearing was why the Nuclear Regulatory Commission has not yet acted on the Department of Energy's request to withdraw its permitting application for Yucca.  A prior decision by the Atomic Safety and Licensing Board ruled that DOE lacked the authority to withdraw its application.  That decision, however, is subject to review by the full NRC.

The implication by Republican lawmakers is that Chairman Gregory B. Jaczko, who was appointed by President Obama, has bowed to the administration's -- and his former boss's, Harry Reid (D.-Nev.) -- will by stalling issuance of the Commission's appellate decision.  A tied vote by the Commission would mean that the Board's decision stands, and other commissioners stated that they had given their votes last year.

A few highlights:

• Rep. Lee Terry (R-Neb.) called the NRC "the most secretive agency on Capitol Hill.”


• Rep. Joe Barton (R-Tex.) suggested that Chairman Jaczko was "foot-dragging . . . because he thinks on June the 30th" the Commission will have a different makeup.


• Rep. Morgan Griffith (R.-Va.) said it appears "from the outside" that the NRC is attempting to stall "until somebody comes along that agrees with you more than apparently whatever votes you got behind the scenes."

Yucca thus now may have officially earned the moniker "energy law's political yo-yo of the century."  No other project is as critical to the future of nuclear energy in this nation, and no other has been as stalled, delayed, debated, wrangled, or fought over.  It is, as politics so often are, truly up and down. 

Or, as Rep. Terry asserted about the NRC itself, "this is a politically run organization now." 

That sounds just like administrative -- and energy -- law to me.

Further coverage is available in the Washington Post, the New York Times, the Las Vegas Sun, and at E&E Daily.

-Lincoln Davies